Workplace Immigration Enforcement Should Not Trump Employers’ Rights

Since running for president, Donald Trump has made a vow to crack down on illegal immigration. Now that he is in office, he has made good on that promise. What has made some businesses nervous are Immigration and Customs Enforcement’s increasing efforts to aggressively investigate those companies that may have employed undocumented immigrants, knowingly or unwittingly.

When agents enter a business and ask for the workers’ Employment Eligibility Forms, or I-9s, most employers and managers are scared and say “yes.” Moreover, ICE officers often ask and receive permission to interview employees right on the spot.

However, it is important that these businesses understand and exercise these legal rights. ICE must give the business written notice and the business has three days to produce the I-9s for each employee.

Companies should take advantage of the time they have between being notified of the investigation and the investigation itself to protect their legal rights and seek an attorney to guide them through compliance and sanctions and petition for valuable employees. It is even better to have immigration counsel work with employers before receiving a notice of inspection.

In October, ICE acting director Thomas Homan gave a speech to the Heritage Foundation, announcing that he has instructed Homeland Security Investigations, the investigative arm of ICE, to increase the agency’s workplace enforcement by a factor of “four to five times.” The purpose of the announcement was to put on notice those companies, the agency believes, have knowingly hired undocumented immigrants. However, this struck fear into the hearts of all business owners who were unsure if they were compliant.

In addition, those who are not in this country legally will be subject to arrest and deportation. ICE spokeswoman Danielle Bennett added that the agency will pursue more investigations and conduct more audits of the I-9 forms. This was reiterated by Homan, who told those in attendance, “We’re taking worksite enforcement very hard this year. We’ve already increased the number of inspections and worksite operations, you’re going to see that significantly increase this next fiscal year.”

Even if Homan orders his agents to conduct more investigations in the coming months, those companies that are subject to an I-9 notice still have rights. Unless ICE has a judicially endorsed warrant, they have no right to enter the business and the employer, manager or their agents have no obligation to answer questions. But, ICE and HSI agents are good at getting permission from managers. There is no requirement to give law enforcement permission to enter the premises.

If ICE or HSI agents want to search the workplace and interview employees, they either need permission from the employer or his agents or a warrant. By the way, if they already have a warrant, it is not likely they would be so polite to ask.

If there isn’t a warrant and you do not give them permission to enter and interview staff, they must leave a notice that gives the employer three days to produce the I-9s. From there, the company can hire an immigration law attorney for assistance during that period. In addition, some employees are so valuable, managers and supervisors may wish to find out if they can petition to retain them. Non-citizen employees may wish to review their options as well.

These workplace enforcement tactics are nothing new. During the Reagan administration the Immigration Reform and Control Act of 1986 went into effect. It prohibited employers from hiring, recruiting or referring, for a fee, non-citizens who were not authorized to work in the U.S. As such, employers were required to verify each employee’s identity and eligibility to work by completing and maintaining an I-9 form. Failure to do so resulted in civil fines or criminal penalties.

Today, employers are enrolling in the E-Verify program, which was authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. E-Verify is an electronic program which employers submit the information taken from a newly hired employee’s I-9 form; from there, U.S. Citizenship and Immigration Services and the Social Security Administration review the information and determine whether that person is authorized to work in the United States. According to USCIS, more than 700,000 employers use this program.

ICE usually targets certain businesses where undocumented immigrants often are employed. But it is not just those businesses that are under the watchful eye of ICE. Any company — regardless of the industry, its size and its location — can be subject to an I-9 verification or review process by ICE or, in severe cases, a criminal investigation by HSI.

In order to assist companies in being in compliance and ensuring their employees are eligible to work in this country, HSI is promoting IMAGE, or ICE Mutual Agreement between Government and Employers. Initially established in 2006, IMAGE is a program in which companies voluntarily receive education and training from ICE and USCIS on proper hiring techniques, detecting fraudulent documentation and use of the E-Verify program. In addition, they will learn how to avoid discrimination in the hiring process.

ICE has since streamlined the process, which now includes a formal membership certification program. Those who wish to receive IMAGE certification must fill out the IMAGE Self-Assessment Questionnaire, enroll in the E-Verify program within 60 days after enrollment, establish a written hiring and employment eligibility verification policy that includes an internal Form I-9 audit at least once a year, submit to a Form I-9 inspection and review and sign the IMAGE partnership agreement. Once the company meets those requirements, they are IMAGE certified.

ICE agents must recognize their boundaries when establishing a workplace enforcement action. They cannot just walk into a workplace and demand the I-9 forms of every single employee.

Many companies believe that if they hand over everything to the agents with no questions asked, they will get off easy — maybe not face prosecution. Business owners must understand that they are allowed to prepare and protect themselves before ICE even knocks on the door.

Eileen Bretz is a partner with Bretz & Coven, LLP, an immigration law firm with offices in New York, New York and Clark, New Jersey. Bretz handles employment-based immigration matters and works with companies, various organizations and individuals seeking immigrant and non-immigrant visas. She counsels and represents clients on H-1B, J-1 (including waivers), L-1, O-1, P visas, EBs, labor certification, investor visas and regional centers.